Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, State Grand Jury Chief Robert E.
Bogan, and Assistant Attorney General Tracey Colton Green, all of Columbia, for respondent.

JUSTICE WALLER: We granted
a writ of certiorari to review the Court of Appeals' opinion in State v.
Miller, 342 S.C. 191, 535 S.E.2d 652 (Ct. App. 2000).
(1) We affirm in result.

FACTS

This case arose out of a single State Grand Jury (SGJ) prosecution involving numerous co-defendants. Essentially, the state's case
involved a conspiracy to traffic cocaine in the upstate between 1990-1996. Each time police made an arrest, they would seek
cooperation from the arrestee and arrange controlled buys from other members of the conspiracy. The state alleged that Jose
Castineira was the head supplier, who supplied large amounts of cocaine to O'Bryant (O.B.) Harris who in turn supplied to other
distributors, including petitioner Miller, (2) and a distributor named Todd Brank. Brank sold to Timothy Hammitt. Ultimately, the
SGJ indicted twenty-six defendants, eighteen of whom pled guilty; the remaining eight, including Timothy Hammitt, Jose Castineira
and Miller, were tried together in April-May 1997. Miller was convicted of conspiracy to traffic in 400 grams of cocaine and
sentenced to twenty-five years imprisonment.

2. Was Miller's conspiracy conviction prohibited by virtue of his 1991 plea to conspiracy under a federal indictment?

3. Did the court err in denying Miller's motion for a severance?

4. Did the court err in denying Miller's motion for a directed verdict?

1. MAXIMUM SENTENCE FOR CONSPIRACY

Pursuant to S.C. Code Ann. § 44-53-370 (e)(2)(e)(2002),

(e) Any person who knowingly sells, manufactures, cultivates, delivers, purchases, or brings into this State, or who provides
financial assistance or otherwise aids, abets, attempts, or conspires to sell, manufacture, cultivate, deliver, purchase, or bring
into this State, or who is knowingly in actual or constructive possession or who knowingly attempts to become in actual or
constructive possession of:

(2) ten grams or more of cocaine or any mixtures containing cocaine, as provided in Section 44-53-210(b)(4), is guilty of a
felony which is known as "trafficking in cocaine" and, upon conviction, must be punished as follows if the quantity involved is:

(e) four hundred grams or more, a term of imprisonment of not less than twenty-five years nor more than thirty years with a
mandatory minimum term of imprisonment of twenty-five years, no part of which may be suspended nor probation granted, and a
fine of two hundred thousand dollars. . . .

(Emphasis supplied). The statute goes on to state that, "[n]otwithstanding Section 44-53-420, a person convicted of
conspiracy pursuant to this subsection must be sentenced as provided in this section with a full sentence or punishment
and not one-half of the sentence or punishment prescribed for the offense." (Emphasis supplied).

Petitioner cites S.C. Code Ann. § 44-53-420 (2002), contending his punishment should not have exceeded one-half of that for
trafficking in excess of 400 grams of cocaine (i.e., one-half of thirty years). Section 44-53-420 provides:

Any person who attempts or conspires to commit any offense made unlawful by the provisions of this article shall, upon conviction,
be fined or imprisoned in the same manner as for the offense planned or attempted; but such fine or imprisonment shall not exceed
one half of the punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

The Court of Appeals held in Castineira, supra,
that section 44-53-420 did not apply; it found the language of section 44-53-370(e),
under which the defendant was indicted, incorporates conspiracy within the substantive
offense. 341 S.C. at 625-26, 535 S.E.2d at 452-53. We agree. Clearly, the plain
and unambiguous language of section 44-53-370(e) reflects a legislative intent
that those guilty of conspiring to traffic drugs thereunder are subject to the
full sentence for the offense, rather than the one-half sentence provided in
section 44-53-420.

Recently, in Harris v. State, Op. No. 25437 (filed
April 8, 2002) (Shearouse Adv. Sh. No. 10 at 29, 31), this Court noted that
"as defined in [section 44-53-370(e)(2)], there is no distinction between conspiracy
to traffick and the substantive offense of trafficking. . . . The legislature
clearly intended that conspiracy to traffic be treated as trafficking under
§ 44-53-370(e)."

Petitioner asserts there is a difference between "trafficking
by conspiracy" and a "conspiracy to traffic." Essentially, he claims one may
be guilty of the substantive offense of "trafficking by conspiracy" only if
that person conspires to sell, manufacture, deliver or bring into the state
more than 10 grams of cocaine. Any other conspiracy to violate the trafficking
statute, he contends, is "conspiracy to traffic" which is exempted by section
44-53-420. (3) This contention is untenable.
Contrary to petitioner's contention, the Harris court specifically found
that the legislature intended conspiracy to traffic be treated as trafficking.
Petitioner's attempt to circumvent this result with a distinction between a
substantive offense of "trafficking by conspiracy" and "conspiracy to traffic"
is unavailing. (4) Accordingly, Miller's twenty-five
year sentence is affirmed.

2. MILLER'S FEDERAL CONSPIRACY ARREST

On May 16, 1991, Miller was arrested by federal authorities in conjunction with a cocaine transaction which occurred between
May 7, 1991 and May 16, 1991. A three-count indictment was issued charging Miller and one James Nesbitt with conspiracy to
distribute two kilos of cocaine, distribution of two kilos of cocaine, and possession with intent to distribute eight ounces of cocaine.
No other conspirators were named in the federal indictment; the indictment did state, however, that Miller and Nesbitt conspired
"with various other persons both known and unknown." Miller agreed to plead guilty to one count upon the government's
agreement to move to dismiss the other two counts. (5) Accordingly, on September 6, 1991, Miller pled guilty to conspiracy to
possess with intent to distribute cocaine. However, he remained out of jail for nearly two years (until May 1993), when he was
sentenced to sixty months in prison by a federal judge.

In August 1993, the SGJ began an undercover investigation (dubbed Operation Cue Ball) by making undercover drug buys from an
individual named Michael Greer. Greer gave police information which led to the arrest of James Smith a/k/a Smitty, who in turn
implicated James Hattaway, who then implicated Todd Brank, who set up controlled buys from Jerome "Babe" Harris, who is
Miller's half-brother. Brank, who implicated Miller, testified that Miller had been his cocaine supplier until Miller went to prison in
May 1993. Miller admitted his participation but maintained that his involvement in the conspiracy had ended with his federal arrest.
Contrary to Miller's testimony, however, O.B. Harris testified he continued to supply Miller with cocaine from the time of his 1991
arrest until his 1993 incarceration, and had even had continued drug dealings with Miller while Miller was in jail. Brank testified he
had purchased approximately 3 kilos of cocaine from Miller between 1991-1993.

Miller was indicted by the SGJ on October 8, 1996, for conspiring to traffic 400 grams of cocaine between 1991-1996. He
moved to dismiss the SGJ indictment on the ground that there had been but one conspiracy, to which he had already pled guilty in
conjunction with his 1991 federal drug arrest, such that the state prosecution was prohibited by S.C. Code Ann. § 44-53-410
(2002) and the Double Jeopardy clauses. (6) The trial court ruled Miller's involvement in the conspiracy ended on the date of his
arrest on May 16, 1991, and instructed the jury that in order to convict Miller, it would have to find he conspired after that date.
The Court of Appeals agreed finding, as a matter of law, that Miller's involvement in the conspiracy ended with his arrest and
conviction. 342 S.C. at 199, 535 S.E.2d at 656. (7) Accordingly, it found his continued participation thereafter constituted a new
act for which he could be prosecuted. We agree.

S.C. Code Ann. § 44-53-410 (2002) states, "If a violation of this article is a violation of a Federal law or the law of another state,
the conviction or acquittal under Federal law or the law of another state for the same act is a bar to prosecution in this State."
(Emphasis supplied). Accordingly, the issue before us is whether Miller's arrest effectually ended his participation in the initial
conspiracy, such that his "re-entry" or continued participation thereafter constitutes a separate act, or a new "agreement" for which
he was properly prosecuted. (8) Under several authorities, we find that it is.

In United States v. Asher, 96 F.3d 270 (7th Cir.1996),
cert. denied, 519 U.S. 1100 (1997), the Seventh Circuit held a conspirator's
re-entry into the same conspiracy for which he was previously convicted can
lead to a second prosecution for conspiracy without violating the Double Jeopardy
Clause. 96 F.3d at 273-74. Asher pled guilty to an automobile theft conspiracy.
He served a term of imprisonment and upon release immediately became involved
in the same conspiracy. He was again charged with conspiracy and raised a double
jeopardy claim. The Seventh Circuit upheld the second prosecution finding Asher
entered into a new agreement to commit a crime when he decided to rejoin the
stolen vehicle ring following his release from prison. The court noted "[u]doubtedly,
Congress could have chose to punish rejoining a conspiracy in addition to punishing
the original conspiracy without running afoul of the Double Jeopardy Clause."
Id. at 274.

Similarly, in United States v. Dunn, 775 F.2d 604
(5th Cir.1985), the defendant was separately indicted for two conspiracies to
manufacture amphetamines, one conspiracy running from early 1979-April 1983
(the San Antonio indictment), and the other between July 23, 1980-November 1980,
the date of Dunn's arrest (the Austin indictment). The San Antonio indictment
was specifically amended to limit Dunn's participation in the conspiracy to
dates after his November 1980 arrest. Dunn was convicted of the San Antonio
conspiracy and maintained he was convicted twice for his uninterrupted activities
in a continuing criminal conspiracy when there was no evidence of a second agreement.
See Dunn, 775 F.2d at 606. The Dunn court stated, "it is well
settled that a person's participation in a conspiracy ends when that person
is arrested for his role in the conspiracy." Id. at 607, citing United
States v. Postal, 589 F.2d 862 (5th Cir.), cert. denied, 444 U.S.
832 (1979).

The Dunn court went on to note that "further [participation
in an] 'old' conspiracy after being charged with that crime becomes a new offense
for purposes of a double jeopardy claim." Id.,
citing United States v. Stricklin, 591 F.2d 1112, 1121 n. 2 (5th Cir.),
cert. denied, 444 U.S. 963, 100 S.Ct. 449, 62 L.Ed.2d 375 (1979) (emphasis
supplied). See also United States v. Lopez, 153 F.3d 723 (4th
Cir.), cert' denied 525 U.S. 975 (1998)(defendant indicted for a second
conspiracy for his post-arrest activities while out on bond; court adopted reasoning
of Asher and Dunn to find defendant's involvement in first conspiracy
ended with arrest and conviction such that they could be subjected to prosecution
for any further involvement in the on-going conspiracy); United States v.
Romero, 967 F.2d 63, 68 (2d Cir.1992)(defendant not subjected to double
jeopardy when tried for conspiracy to violate federal narcotics statutes and
engaging in a continuing criminal enterprise, even though he had previously
pled guilty to conspiracy to violate RICO in connection with drug dealing and
the new charges dealt with the period after his guilty plea); United States
v. Sharpe, 193 F.3d 852 (5th Cir. 1999), cert. denied,
528 U.S. 1173 (2000) (person's participation in conspiracy ends when that person
is arrested for his role in the conspiracy); United States v. Goff, 847
F.2d 149 (5th Cir.), cert. denied, 488 U.S. 932 (1988)(arrest
of several members of conspiracy does not necessarily terminate conspiracy,
although arrested member's participation in conspiracy ends at time of arrest);
People v. Wilson, 563 N.W.2d 44 (Mich. 1997) (defendants' role in conspiracy
ended with their arrest notwithstanding underlying conspiracy may have been
on-going).

We adopt the reasoning of the above authorities. We hold
that the re-entry into a continuing conspiracy subsequent to the defendant's
arrest is, for purposes of double jeopardy, the formation of a new agreement.
Accordingly, we find Miller's participation, subsequent to his May 1991, arrest
constituted a new offense for which he could be prosecuted. Dunn, supra.

3. SEVERANCE/PRIOR BAD ACTS

Miller next asserts the trial court erred in refusing to sever his trial from that of his codefendants; he claims prejudicial error in
admission of evidence of his "prior bad acts" in the conspiracy, which occurred prior to May 16, 1991 (the date of his federal
arrest). He contends this evidence was prejudicial and reversible.

Initially, as noted by the Court of Appeals, although Miller
requested a severance and claimed this evidence would be prejudicial, he did
not request a severance based upon the issue which he now raises, i.e., that
lack of a severance would result in admission of improper prior bad act evidence
under Rule 404(b), SCRE, and State v. Lyle, 125 S.C. 406, 118 S.E. 803
(1923). (9) Accordingly, this issue is not preserved.
State v. Byram, 326 S.C. 107, 485 S.E.2d 360 (1997); State v. Bailey,
298 S.C. 1, 377 S.E.2d 581 (1989) (party may not argue one ground at trial and
then an alternative ground on appeal). In any event, Miller has not demonstrated
prejudice from the lack of a severance.

A motion for severance is addressed to the trial court and
should not be disturbed unless an abuse of discretion is shown. Charges can
be joined in the same indictment and tried together where they (1) arise out
of a single chain of circumstances, (2) are proved by the same evidence, (3)
are of the same general nature, and (4) no real right of the defendant has been
prejudiced. State v. Tucker, 324 S.C. 155, 478 S.E.2d 260 (1996) cert.
denied 520 U.S. 1200 (1997). Recently, this Court noted that "a severance
should be granted only when there is a serious risk that a joint trial would
compromise a specific trial right of a co-defendant or prevent the jury from
making a reliable judgment about a co-defendant's guilt. . . . An appellate
court should not reverse a conviction achieved at a joint trial in the absence
of a reasonable probability that the defendant would have obtained a more favorable
result at a separate trial. " Hughes v. State, 346 S.C. 554, 558-59,
552 S.E.2d 315, 317 (2001).

Here, the trial court explicitly instructed the jury that
Miller could only be convicted of conspiracy if it found he conspired to traffic
in cocaine after May 16, 1991. Further, Miller's defense at trial was that he
had, in fact, participated in the conspiracy up until his federal arrest, but
that he had ceased participating thereafter. Since Miller's sole defense was
that his participation in the conspiracy ended in May 1991, introduction of
his prior drug conviction was inextricably linked with his defense, such that
it would necessarily have been admitted in a separate trial. Hughes, supra.
Accordingly, Miller was not prejudiced by admission of this evidence, nor is
there any reasonable probability he would have obtained a more favorable result
at a separate trial.

4. DIRECTED VERDICT

Finally, Miller asserts he was entitled to a directed verdict as there was insufficient evidence of a separate conspiracy subsequent to
his federal arrest. We disagree.

In reviewing the denial of a motion for a directed verdict,
the evidence must be viewed in the light most favorable to the State. If there
is any direct evidence or any substantial circumstantial evidence reasonably
tending to prove the guilt of the accused, an appellate court must find that
the case was properly submitted to the jury. State v. McGowan, 347 S.C.
618, 557 S.E.2d 657 (2001).

Miller concedes the state presented evidence of his participation in the conspiracy subsequent to his federal arrest. Accordingly,
given our holding in Issue 1 that his participation in the initial conspiracy ended with his federal arrest, we find the issue of his re-entry or subsequent participation in the conspiracy was properly submitted to the jury. The Court of Appeals properly upheld the
denial of Miller's motion for a directed verdict.

AFFIRMED.

TOAL, C.J., MOORE and BURNETT, JJ., concur. PLEICONES, J., concurring in part and dissenting in part in a
separate opinion.

JUSTICE PLEICONES: I concur in part and
dissent in part. I agree with the majority that there is no distinction for
sentencing purposes between "trafficking by conspiracy" and "conspiracy to traffic."
I do not agree, however, that we should adopt the Fifth Circuit's rule
(10) that an arrest ends the arrestee's role in a conspiracy as a
matter of law. See, e.g. United States v. Dunn, 775 F. 2d 604 (5th
Cir. 1985). I would hold that petitioner may be prosecuted in state court for
his role in this conspiracy only if the jury finds that he withdrew and then
rejoined it. I would therefore reverse petitioner's conviction and remand for
a new trial.

The gravamen of a conspiracy is the agreement. E.g.,
State v. Amerson, 311 S.C. 316, 428 S.E.2d 871 (1993). An individual who
joins the conspiracy remains a party to it until he withdraws or until the conspiracy
terminates. A withdrawal is effective only when it is communicated to the other
members of the conspiracy. State v. Woods, 189 S.C. 281, 1 S.E.2d 198
(1939); see also State v. Gunn, 313 S.C. 124, 437 S.E.2d 175 (1993).
"It is always a question for the jury to determine by the facts and circumstances
in the case if a person has retired from the unlawful and illegal conspiracy
. . . . ." State v. Rook, 174 S.C. 225, 235, 177 S.E. 143, 147 (1934).

In my view, petitioner's state prosecution for his role
in the drug conspiracy is barred by S.C. Code Ann. §44-53-410 (Supp. 2000)
(11) unless the state can prove, beyond a reasonable doubt, that petitioner
withdrew and then reentered (by making a new agreement) the continuing conspiracy.
This evidentiary requirement is consistent with that imposed in successive conspiracy
prosecutions by both the Second and the Seventh Circuits. See, e.g. United
States v. Romero, 967 F.2d 63, 67 (2d Cir. 1992)(Double Jeopardy no bar
to a second conspiracy prosecution if the government can "demonstrate that every
element of [the second] conspiracy offense happened after the date
of the plea [to the first conspiracy indictment]")(emphasis supplied); United
States v. Asher, 96 F.3d 270, 272 (7th Cir. 1996) (Double Jeopardy
no bar to second conspiracy prosecution if government can show defendant withdrew
after his first arrest, conviction, and incarceration, and "that after his release
from prison, [he] reentered the conspiratorial agreement thereby committing
a new offense").

There is some appeal to the hard and fast rule adopted by the majority that an arrest terminates participation in a conspiracy as a
matter of law. As explained above, however, such a rule does not comport with our conspiracy jurisprudence. I would therefore
reverse the decision of the Court of Appeals, and remand this matter for a new trial.

2. Miller's legal name is Johnny Harold Miller. His mother married Jerome Harris subsequent to his birth, which is why Miller is
also known as Johnny Harris.

3. In State v. Raffaldt, 318
S.C. 110, 117, 456 S.E.2d 390, 394 (1995), we recognized that trafficking under
44-53-370(e)(2) may be accomplished by a variety of acts, including such acts
as providing financial assistance or knowingly having actual or constructive
possession of cocaine.

4. Moreover, a majority of this Court
rejected the analysis of Justice Finney's dissent in State v. Wilson,
315 S.C. 289, 296, 433 S.E.2d 864, 869-70 (1993), drawing a distinction between
the offenses of "conspiracy to traffic" and "trafficking by conspiracy."

5. Miller was also pled guilty to conspiracy to possess marijuana with intent to distribute, and given a concurrent sixty month
sentence on the same day.

7. The Court of Appeals erroneously held that the trial court ruled Miller's involvement ended with his arrest and conviction. The
trial court held only that Miller's participation terminated with his May 16, 1991 arrest and so instructed the jury.

8. Miller does not contest that he participated in a conspiracy after his arrest, specifically conceding that he "continued to actively
participate from the date of his federal arrest on May 16, 1991, through the time he pled guilty to the federal charges . . . on
September 6, 1991, and continuing until his incarceration on May 28, 1993.

9. Miller did object to the admissibility of his statement to police on grounds that it contained evidence of activities for which he had
already been punished. Moreover, evidence of the prior conviction was admissible under Rule 609(a)(1)(evidence that accused
has been convicted of a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs
its prejudicial effect to the accused).

10. The majority
cites several cases from other jurisdictions that it contends adopt this same
rule. In my opinion, however, none of these other cases stand squarely for this
proposition. For example, the unpublished decision of the Fourth Circuit in
United States v. Lopez, 1998 WL 776788 (4th Cir. 1998), holds
that "The Defendants' involvement in the conspiracy . . . ended with their arrest
and conviction." Id. (emphasis supplied). While the
Michigan decision does rely on Fifth Circuit precedent in "noting" the defendants'
part in the conspiracy ended when they were arrested, the issue in that case
was whether the government could invoke an exception to the Double Jeopardy
bar which allows the state to prosecute a greater crime following a conviction
for a lesser included offense where the state learned of additional facts after
the first conviction. People v. Wilson, 454 Mich. 421, 563 N.W.2d 44
(1997) (holding government had not met its burden allowing it to invoke the
Brown v. Ohio, 432 U.S. 161 (1977) exception).

11. Petitioner
has no valid Double Jeopardy claim since he is being prosecuted by the state
following a federal conviction. Abbate v. United States, 359 U.S. 187
(1959).